Police Investigations and bail: what are the recent changes? (Updated 24.05.23)

Introduction

In 2017 the law was changed such that there was a presumption against placing suspects on bail following arrest but prior to any charging decision. The consequence of this was that suspects were often ‘released under investigation’ without restriction on their liberty but with little idea when a decision would made to conclude the investigation. It is a source of enormous frustration to be ‘under investigation’ but without any understanding when that is going to end.

It would be encouraging to be able to say that such uncertainty will be reduced by recent changes in the law which reverse the presumption against police bail. Previously, if a suspect was to be placed on police bail before charge, they had to be bailed for 28 days in the first instance by which time a charging decision had rarely if ever been made. Following the expiry of that period, a superintendent would have to agree to extend bail (having considered any submissions) and could then only extend for a further two months (no shorter and no longer). After the expiry of this period, police bail without charge could only be authorised by a Magistrate. In practice, this meant that suspects were frequently released from police bail after the expiry of 28 days. After three months, the police were also required to seek the authority of a court to further extend bail.

What is the position now?

The relevant provisions of the Police Crime Sentencing and Courts Act 2022 came into force on 26 October 2022 and make further amendment to the Police and Criminal Evidence Act 1984 (PACE 1984). Thus, for cases after that date the main provisions with respect to police bail are now as follows (note that this is set out in Schedule 4 to the Act):-

• A person who has been arrested may be released on bail only if it is necessary and proportionate to do so and it is authorised by a custody officer (section 30A of PACE 1984)
• In determining whether it is necessary and proportionate to impose bail the police must have regard to – likelihood of surrender, the need to prevent the commission of further offences and the need to safeguard victims and the public. Oddly, the police may also factor in the need to safeguard the person being bailed.
• If that person is released on bail then the police may impose conditions to secure attendance, prevent the commission of further offences, to prevent the interference with justice or for the person’s own protection. There is now an obligation on the police, where practicable, to seek the views of the alleged victim on the question of relevant conditions.
• If it is not necessary and proportionate to impose bail then that person should be ‘released under investigation’.
• If a person is released on bail then he/she must be required to attend a police station at a particular date and time and he must be given a notice providing this detail, the offence for which he was arrested and any conditions.
• Any conditions of bail may subsequently be varied on request by the investigating officer. If that request is refused then it is open to the person bailed to apply to a Magistrates’ Court to vary the conditions.

It seems unlikely that it would be necessary and proportionate to impose police bail and then not to impose conditions thereafter. This means that most suspects who are bailed will have restrictions on their liberty. Perhaps the only exception to this is in circumstances where a person is a foreign national, or has a previous record for failing to answer bail and the police wish to secure attendance at court by requiring that he come back to the police station if a decision is made to charge him. In this regard, it is noteworthy that the police are unable to impose sureties or securities as a condition of bail to secure attendance.

If the police impose bail how long should it be for?

There are different time limits imposed for cases being prosecuted by the FCA, HMRC, NCA or SFO but in respect of all other cases:-

• The applicable police bail period is three months from the date of release
• This period may be extended for a further three months but only if all of the following conditions are met: A there are reasonable grounds for suspecting the person is guilty of the offence; B time for further investigation or further decision-making is needed; C that the investigating or decision making is proceeding diligently and expeditiously; and D it is necessary and proportionate for bail to be extended. The police must also seek the opinion of the person whom it is intended to extend bail and invite the views of his legal representatives prior to the decision being made.
• At the end of the six-month period the police may further extend bail for another three months (nine months from the date of initial release) on the same basis as above.
• Beyond that period of nine months, the police must make an application to a Magistrates’ Court for extension up to a maximum period of 12 months from the initial date of release. Beyond this, further extensions may be possible by order of the Court.

Thus, the most recent legislative changes not only extend the initial bail period from 28 days to three months but also the period after which the police must seek authority from a court from three months to nine months.

Case Study

The following is a fictional example of the application of the new legal principles in practice.

John and Sarah are married and live with their two young children in South Hampstead. On Saturday 1 April 2023, Sarah calls the police to say that John has struck her during an argument. The police arrive at around 2300. Both John and Sarah have been drinking and Sarah alleges that John struck her above the left eye following an argument. She has reddening above her eye. John is arrested on suspicion of assaulting Sarah and is taken to Kentish Town Police Station. His mobile phone is seized from him. Sarah gives a short statement to the police then she goes to bed.

John is interviewed the following morning. He denies the offence. He says that Sarah attacked him while she was sitting at the dining room table and as she did so, she fell and struck her head on the chair. She then called the police. Following interview, the police decide to bail John. Although he has no previous convictions, the police are concerned that he may interfere with justice and persuade Sarah not to give evidence against him. Accordingly, they decide to impose a condition that he does not return home and he must not contact Sarah directly or indirectly. The police are then obliged to bail him for 3 months until 2 July 2023. The police had tried to contact Sarah to discuss this before making this decision but they could not get through to her.

When Sarah discovers that John is not coming home, she is distraught. She cannot quite remember what happened but she wants him back at home. She contacts the police to try and withdraw her statement but the officer in the case (PC Smith) is evasive and unhelpful. He warns her about wasting police time. In the meantime, John instructs solicitors. They contact PC Smith to see if bail can be varied to allow him to come home. PC Smith says no.

John’s solicitors make an application to Highbury Corner Magistrates’ Court to remove the conditions of bail under section 30B PACE 1984. The application is listed on 28 April 2023.  PC Smith gives evidence. He says he reasonably believes John is guilty of the offence because of the photographic evidence. He says that he has sent off John’s phone to the laboratory for download and that all his remaining enquiries are nearly complete. He needs to take another statement from Sarah but she is being uncooperative. As far as he is concerned, he has been acting with all due expedition. John’s solicitor argues that the phone download could not be relevant. There were no photos taken on the phone of the incident and John has no previous convictions. Sarah does not support any prosecution and it could not be proportionate to keep him out of the family home in such circumstances. The Magistrates retire but they decide to err on the side of caution. They refuse the application and John is re-admitted to police bail on the same conditions as before. John is due back at the police station on 2 July. He is living with his parents in Hertfordshire and commuting into work. Sarah is facilitating contact with the children by dropping them off at his parents and not coming in but it is a nightmare for both of them.

By 29 June 2023, PC Smith has still not had the phone back from the laboratory. He goes to his Inspector and asks the Inspector to extend bail for another 3 months to 2 October 2023. The Inspector seeks the views of John’s solicitors who make representations. After considering those representations, the Inspector decides that he cannot authorise an extension of bail.  He is not satisfied that the police have acted with all due expedition and he cannot see that it would be proportionate to keep John out of the family home just in case there was something on his phone. John’s bail is cancelled and he is ‘released under investigation’. The case file is sent to the Crown Prosecution Service who decide that John should not be charged with any offence.

Conclusion

The purpose of the 2017 legislative changes was to make it more difficult for the police to restrict the liberty of suspects prior to any decision on charge. Given the now inexorable delays in the criminal justice system, principally a result of funding cuts, the introduction of such checks and balances were necessary and proportionate. Regrettably, the latest legislative intervention has diluted those checks and balances and made it much more difficult for suspects to challenge restrictions on liberty. Many people are arrested on suspicion of crimes which are never made the subject of criminal charge and delays in the process of decision making should not be permitted to disproportionately affect the liberty of those suspects. In practice, therefore, it is to be expected that an increasing number of suspects will remain on police bail whereas previously they had been released under investigation. As things stand, there is little hope of any expedition of process meaning that many suspects will remain ‘under investigation’ whether on bail or otherwise for far longer than they should.

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